Opinion
8:96CR106.
April 18, 2002
MEMORANDUM AND ORDER
This matter is before the court for decision on filing no. 91, the "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" ("§ 2255 motion"), filed by the defendant, Michael D. Vacanti. In filing nos. 93, 102, and 103, the defendant amended and supplemented his § 2255 motion. Upon initial review (filing no. 96) pursuant to Rule 4 of the Rules Governing Section 2255 proceedings for the United States District Courts, Magistrate Judge Kathleen A. Jaudzemis recommended against summary dismissal of the § 2255 motion, as amended.
Rule 4 of the Rules Governing Section 2255 proceedings for the United States District Courts states in pertinent part:
Preliminary Consideration by Judge . . . . (b) Initial consideration by judge. The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.
Rule 10 states: "Powers of Magistrates. The duties imposed upon the judge of the district court by these rules may be performed by a United States magistrate pursuant to 28 U.S.C. § 636."
BACKGROUND
A jury convicted the defendant of one count of conspiracy to distribute in excess of one kilogram of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 846 (Count I of the Indictment), and three counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Counts II, III, and VI) (see Indictment and Verdict, filing nos. 1 and 58). United States District Judge Thomas M. Shanahan sentenced the defendant to 360 months of imprisonment on Count I, followed by five years of supervised release, and 240 months of imprisonment on Counts II, III and VI, with three years of supervised release. The prison terms are to be served concurrently, followed by concurrent terms of supervised release (see Judgment in a Criminal Case, filing no. 68). In United States v. Vacanti, 163 F.3d 604 (unpublished), 1998 WL 750560 (8th Cir. Oct. 28, 1998), the Eighth Circuit Court of Appeals affirmed the defendant's conviction and sentence.
28 U.S.C. § 2255 permits a prisoner serving a sentence imposed by a federal court to move to vacate, set aside or correct the sentence when such sentence violates the Constitution or laws of the United States, or the court lacked jurisdiction to impose the sentence, or the sentence exceeds the maximum authorized by law, or the sentence is otherwise subject to collateral attack. In his § 2255 motion, the defendant raises the following grounds for relief:
(1) The Indictment was multiplicitous, in violation of the Double Jeopardy Clause of the Fifth Amendment.
(2) The district court erred in declining to depart downward pursuant to U.S.S.G. § 5K2.0 of the United States Sentencing Guidelines.
(3) The defendant received ineffective assistance of counsel because his trial attorney failed to raise the issue of double jeopardy and failed to present a valid basis for a downward departure under the Sentencing Guidelines.
(4) The defendant's sentence should be vacated because the decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) requires that any fact which increases the penalty for a crime beyond the maximum applicable by virtue of the elements of the offense alone must be charged in the indictment, submitted to a jury and proved beyond a reasonable doubt.
The plaintiff, the United States of America, has filed an Answer to the § 2255 Motion (filing no. 99). The United States argues that none of the defendant's arguments entitles him to relief under 28 U.S.C. § 2255.
MULTIPLICITY
The defendant first contends that he was punished twice for the same crime, in violation of the Double Jeopardy Clause, when he received sentences for both conspiracy and money laundering. According to the defendant, because the alleged conspiracy constituted an essential element of the money laundering offense, the United States tried him on a multiplicitous indictment, i.e., an indictment that charged two or more crimes in separate counts when only one crime had been committed.
However, "[a]n objection to an indictment on grounds of multiplicity or double jeopardy is waived if not raised before trial." United States v. Jackson, 155 F.3d 942, 947 (8th Cir.), cert. denied, 525 U.S. 1059 (1998), citing United States v. Shephard, 4 F.3d 647, 650 (8th Cir. 1993), cert. denied, 510 U.S. 1203 (1994).
In addition, because the defendant did not raise the issue of multiplicity on direct appeal, he is procedurally barred from raising the claim for the first time on collateral review. See, e.g., United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001), cert. denied, 122 S.Ct. 848 (2002) (Federal habeas relief is an extraordinary remedy which will not be allowed to do service for an appeal. "[A] claim unraised on direct appeal is procedurally defaulted unless a petitioner can demonstrate (1) cause for the default and actual prejudice or (2) actual innocence."). The defendant has shown neither cause for the failure to challenge the indictment on direct appeal nor actual innocence of the offenses of conviction.
Even if the defendant had not waived and procedurally defaulted his claim of multiplicity, the claim fails on the merits. A "multiplicitous" indictment charges a single offense in multiple counts, United States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001), thereby subjecting a defendant to the risk of multiple punishments for a single offense. United States v. Christner, 66 F.3d 922, 927 (8th Cir. 1995). On the other hand, "a single transaction can give rise to distinct offenses under separate statutes without violating the Double Jeopardy Clause." Albernaz v. United States, 450 U.S. 333, 344-45 n. 3 (1981). Therefore, because a defendant may be convicted of two statutory offenses arising out of the same act or transaction, the issue is whether the defendant did, in fact and law, violate two or more separate offenses.
In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court established a test to determine whether multiple prosecutions violate the Double Jeopardy Clause. "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Id. at 304. Accord United States v. Dixon, 509 U.S. 688 (1993) (The double jeopardy bar applies if the two offenses for which the defendant is tried, convicted or punished cannot survive the "same-elements" or "Blockburger" test). "The same-elements test, sometimes referred to as the `Blockburger' test, inquires whether each offense contains an element not contained in the other; if not, they are the `same offence' and double jeopardy bars additional punishment and [multiple] prosecution." Id. at 696. See alsoBall v. United States, 470 U.S. 856, 862 (1985) (the appropriate inquiry is whether proof of each offense necessarily requires proof of the other offense) (italics in original).
The defendant urges that all of the underlying elements of the conspiracy charge were encompassed within the money laundering counts. To prove money laundering under 18 U.S.C. § 1956(a)(1)(A)(i), the government must establish the following essential elements: (1) the defendant conducted a financial transaction involving the proceeds of unlawful activity; (2) the defendant knew that the property involved in the transaction constituted proceeds of unlawful activity; and (3) the defendant intended to promote or further the specified unlawful activity. United States v. Jenkins, 78 F.3d 1283, 1288 (8th Cir. 1996). Accord United States v. Delgado, 256 F.3d 264, 275 (5th Cir. 2001). Thus, conspiracy is not an essential element of money laundering under 18 U.S.C. § 1956(a)(1)(A)(i).
To prove that a defendant was a member of a conspiracy to distribute controlled substances, the government must demonstrate: (1) that there was a conspiracy, an agreement to distribute controlled substances, (2) that the defendant knew of the conspiracy, and (3) that the defendant intentionally joined the conspiracy. United States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir. 2001). See also United States v. Robinson, 217 F.3d 560, 564 (8th Cir.), cert. denied, 531 U.S. 999 (2000): "To support [a defendant's] conviction for conspiracy under 21 U.S.C. § 846, there must be evidence that [the defendant] entered into an agreement with at least one other person and that the agreement had as its objective a violation of the law. . . . Section 846 does not require proof of an overt act in furtherance of the conspiracy." Therefore, that the defendant conducted a financial transaction is not an essential element of a conspiracy charge.
As a result, each of the offenses charged in this case required proof of an additional fact which the other did not. Blockburger, 284 U.S. at 304. Accord United States v. Williams, 118 F.2d 717 (10th Cir.), cert. denied, 522 U.S. 1033 (1997) (applying the Blockburger test to drug conspiracy and money laundering convictions). In Williams, the Tenth Circuit held that a charge of conspiracy to distribute marijuana did not constitute the same offense as money laundering for double jeopardy purposes, and the defendant's conviction of both charges did not result in multiple punishments for the same offense. Conspiracy to distribute a controlled substance does not necessarily require proof of financial transactions, and money laundering does not require evidence of conspiracy. Id. at 718.
For the foregoing reasons, the defendant's first claim in his § 2255 motion must be denied.
U.S.S.G. § 5K2.0
The defendant alleges that he was entitled to a downward departure pursuant to U.S.S.G. § 5K2.0 of the United States Sentencing Guidelines by virtue of aggravating or mitigating circumstances of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. Judge Shanahan, upon consideration of the record, found that the defendant did not meet the criteria of U.S.S.G. § 5K2.0 (see sentencing transcript at 635-39). Implicit in that ruling is Judge Shanahan's conclusion that this case did not present a characteristic or circumstance distinguishing the case from the "heartland" of cases covered by the guidelines in a way that is important to the statutory purposes of sentencing, or that the case was atypical, i.e., one to which a particular guideline linguistically applied but where the conduct significantly differed from the norm. See commentary to U.S.S.G. § 5K2.0.
This claim, too, was not raised on appeal and is procedurally defaulted. However, even if not barred by procedural default, the defendant's second claim lacks merit.
According to the defendant, three factors, considered in combination, warranted a downward departure from the sentencing guidelines pursuant to U.S.S.G. § 5K2.0. First, the defendant protests that his co-conspirators received substantially lower terms of imprisonment than the sentence imposed on the defendant. Second, he maintains that the testimony of his co-conspirators regarding the amount of methamphetamine attributable to the defendant lacked independent corroboration. Third, the defendant accuses the government of "manipulating" the drug quantities attributable to his co-conspirators so as to reduce the quantities of drugs for which those individuals were responsible.
As the transcript of the sentencing hearing indicates, the defendant's trial attorney pointed out the disparity between the sentences received by the defendant's co-conspirators and the sentencing range applicable to the defendant. However, disproportionate sentences among co-defendants (in this case, co-conspirators) do not justify a downward departure pursuant to U.S.S.G. § 5K2.0. See, e.g., United States v. Polanco, 53 F.3d 893 (8th Cir. 1995), cert. denied, 518 U.S. 1021 (1996):
Disparity between sentences imposed on codefendants is not a proper basis for departure. [A defendant] "cannot rely upon his [codefendant's] sentence as a yardstick for his own." . . . Although Congress intended the guidelines to promote proportionality and uniformity in sentencing, see U.S.S.G. Ch. 1, Pt. A, intro. comment 3 (Nov. 1994), "disparity will always exist so long as sentences are based upon the specific facts of each individual defendant's case." . . . Consideration of a codefendant's sentence would "create, rather than alleviate, disparity among the sentences imposed nationwide upon federal defendants convicted of similar crimes." . . . Therefore, "[t]he greater uniformity trumps the lesser disparity." . . . The sentencing court's desire to proportionalize sentences between codefendants is not, and by itself cannot be, an aggravating or mitigating circumstance justifying a section 5K2.0 departure.Id. at 897-98 (citations omitted). In addition, the defendant's co-conspirators received reduced sentences because of the downward departures they received for providing substantial assistance to the government. See U.S.S.G. § 5K1.1. The defendant did not provide such assistance.
As to the alleged lack of independent corroboration of drug quantity, the defendant in essence challenges the veracity of his convicted co-conspirators who received reduced sentences in part because they testified against him. The defendant contends that his co-conspirator's testimony concerning drug quantity should be disregarded as unreliable. However, this kind of challenge to the credibility of co-conspirators usually relates to the sufficiency of the evidence to sustain a conviction. See, e.g., United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.), cert. denied, 531 U.S. 1026 (2000). The defendant provides no support for a downward departure pursuant to U.S.S.G. § 5K2.0 based on an alleged lack of corroboration as to drug quantity.
"[The defendant] also asserts that insufficient evidence supports his conviction. The evidence against [the defendant] at trial consisted mainly of the testimony of other participants in drug transactions. [The defendant] asserts that such testimony is unreliable and inconsistent, and that some corroborating evidence is necessary for his conviction to stand." United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.),cert. denied, 531 U.S. 1026 (2000).
Finally, the defendant's co-conspirators entered into plea agreements with the government limiting the quantities of methamphetamine for which those defendants were responsible. The co-conspirators cooperated with authorities, and, on motions filed by the government, they received downward departures from the sentencing guidelines in recognition of their substantial assistance to the government. Such arrangements limiting the quantity of drugs attributable to a defendant for sentencing purposes are common features of plea agreements and do not, in this court's view, constitute "manipulation" of drug quantity. The plea agreements and cooperation by the defendant's co-conspirators did not entitle the defendant to a downward departure under U.S.S.G. § 5K2.0.
For those reasons, the defendant's second claim in his § 2255 motion fails to provide a basis for post-conviction relief.
INEFFECTIVE ASSISTANCE OF COUNSEL
Pursuant to Strickland v. Washington, 466 U.S. 668 (1984), a defendant who bases a § 2255 motion on ineffective assistance of counsel bears the burden of proving both that his trial attorney's performance was deficient and that the defendant suffered prejudice by reason of his counsel's ineffective assistance. To establish prejudice, the defendant must demonstrate that absent counsel's errors, there exists a reasonable probability that the result of the proceeding would have been different.Evans v. United States, 200 F.3d 549, 550 (8th Cir. 2000), citing Strickland, 466 U.S. at 689-90. Accord Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000): "The Strickland test has two parts: whether counsel's performance was in fact deficient and, if so, whether the defendant was prejudiced by the inadequate representation. If we can answer `no' to either question, then we need not address the other part of the test. . . . Under the first part of the Strickland test, we consider counsel's performance objectively and gauge whether it was reasonable `under prevailing professional norms' and `considering all the circumstances.' . . . We look at counsel's challenged conduct at the time of his representation of the defendant and we avoid making judgments based on hindsight."
The defendant bases his claim of ineffective assistance of counsel on his trial attorney's failure to challenge the indictment as multiplicitous and to raise the previously addressed grounds for a downward departure. However, as discussed, both of those claims lack merit. Thus, the attorney's failure to allege double jeopardy or to move for a downward departure based on sentencing disparity, uncorroborated evidence of drug quantity and "manipulation" of drug amounts did not constitute ineffective assistance of counsel under Strickland v. Washington.
The record and the applicable law do not indicate objectively unreasonable legal representation or prejudice to the defendant. Therefore, the defendant's third claim in his § 2255 motion must be denied.
APPRENDI CLAIM ON COLLATERAL REVIEW
The Supreme Court's decision in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), requires that any fact, other than a previous conviction, which increases the penalty for a crime beyond the lowest statutory maximum must be alleged in the indictment or other charging document, submitted to a jury, and proved beyond a reasonable doubt. Id., 120 S.Ct. at 2363. Unlike the prior commission of a crime, drug quantity is not a sentencing factor which may be determined by a sentencing judge by a preponderance of the evidence and subject a defendant to a higher statutory maximum penalty. United States v. Carter, 270 F.3d 731, 736 (8th Cir. 2001).
Thus, on direct appeal from a conviction, the Eighth Circuit has held that when a defendant did not stipulate to drug quantity and neither the indictment nor a jury verdict specified the amount of controlled substances involved in the offense, a sentence above the lowest maximum penalty applicable to the particular drug trafficking offense constitutes plain error. United States v. Butler, 238 F.3d 1001, 1005 (8th Cir. 2001).
However, the Eighth Circuit has ruled repeatedly that Apprendi does not afford relief retroactively to proceedings on collateral review. See, e.g., Dukes v. United States, 255 F.3d 912, 913-14 (8th Cir. 2001):
Although we retroactively apply Apprendi in cases on direct appeal, United States v. Anderson, 236 F.3d 427, 429 (8th Cir. 2001), this court has recently concluded that Apprendi presents a new rule of constitutional law that is not of "watershed" magnitude and, consequently, petitioners may not raise Apprendi claims on collateral review. [United States v.] Moss, 252 F.3d 993, 995 [(8th Cir. 2001)] (relying upon Teague v. Lane, 489 U.S. 288 . . . (1989) (plurality)). . . .
While the Supreme Court has not spoken on the issues decided in Moss, we are bound by that decision. United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997) ("One panel may not overrule another."). . . . [W]e find no way around Moss' prohibition on retroactive application.
Accord Jarrett v. United States, 266 F.3d 789, 791 (8th Cir. 2001). Consequently, the defendant's collateral attack on his sentence and conviction based on Apprendi must be overruled.
THEREFORE, IT IS ORDERED:
(1) That filing no. 91, the "Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255" filed by the defendant, Michael D. Vacanti, is denied; and
(2) That a separate judgment of dismissal with prejudice will be filed in accordance with this Memorandum and Order.
JUDGMENT
In accordance with the Memorandum and Order filed on this date,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the "Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28 U.S.C. § 2255" filed by the defendant, Michael D. Vacanti, is dismissed with prejudice.